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Stool Lands - Compulsorily
acquired land - Article 267(2)
of the 1992 Constitution-
whether the compensation payable
should be made under article 267
into the Stool Lands Account or
to be paid directly to the
stools concerned. - Whether tha
article 267(2) of the 1992
Constitution did not apply to
compensation for stool lands
compulsorily acquired by the
State -
HEADNOTES
The facts as neatly set out by
the 1st and 3rddefendants
in their statement of case are
as follows. By the State Lands
(Barekese – Site for Dam and its
Catchment Area) for Ghana Water
Company Limited- Instrument
2001, EI 23, the Government of
Ghana acquired 9,669.47 acres of
land situate at Barekese in the
Ashanti Region on behalf of the
Ghana Water Company Ltd. The
land covered about twelve stool
lands. Subsequently, the 2nddefendant
sought advice from the 1st defendant
by a letter dated 1st April
2008 as to who was to be paid
compensation from the
compulsorily acquired land. That
is whether the compensation
payable should be made under
article 267 into the Stool Lands
Account or to be paid directly
to the stools concerned. The 1st defendant,
in a letter dated 11th April
2008 advised that article 267(2)
of the 1992 Constitution did not
apply to compensation for stool
lands compulsorily acquired by
the State. The reason that was
given was that acquisition of
land made under the State Lands
Act, 1962 (Act 125) as amended,
fell under article 20(2) of the
Constitution, thus it was to be
paid directly to the stools as
owners of the stool land. It is
this advice that the Plaintiff
claims to be fundamentally at
odds with the clear meaning of
“revenue or other payments
whether in the nature of income
or capital from stool lands” as
provided by article 267(2) of
the 1992 Constitution. Consequently,
the Plaintiff has invoked the
exclusive original jurisdiction
of the Supreme Court pursuant to
articles 2(1) and 130(1) of the
1992 Constitution
HELD :-
For the foregoing reasons we
hold that the expression "or
other payments whether in the
nature of income or capital" in
article 267(2) does not
encompass compensation payable
in respect of land compulsorily
acquired under Section 1(1) of
Act 125 and/or article 20 of the
Constitution. Consequently,
Relief (i) is partly granted in
these terms: to the extent that
the Minister responsible for
lands is reserved a role to play
in the disbursement of stool
lands revenue to local
authorities, section 19(1) of
Act 123 is inconsistent with
article 267(2) and (6) of the
Constitution and to that extent
is declared unconstitutional and
is accordingly struck down.
For reasons advanced above,
Reliefs (ii), (iii) and (iv) are
denied.
DESSENTING -
The offending provision in
section 19(1) of Act 123 that
provoked issue 1 in this case
was inserted by the Statutory
Law Review Commissioner in an
effort to bring the said Act in
line with the 1992 Constitution.
It is obvious that he did not
succeed so I think it is better
to strike it down so I grant
relief 1 of plaintiff's claims.
On the basis of the reasons I
explained above I hereby grant
reliefs 2 and 3 of plaintiff's
claims. I am unable to grant
relief 4 because the processes
before us indicate that the
claimants in the Barekese Dam
acquisition were paid before the
case was filed and I thought
that accounted for plaintiff's
failure to make them parties in
this case.
STATUTES REFERRED TO IN JUDGMENT
EI 23,2001, Ghana Water Company
Limited- Instrument
1992 Constitution article
267(2)
State Lands Act, 1962 (Act 125)
as amended
Administration of Lands Act
1962 section
19
New Patriotic Party v Attorney
General (31st December)
[1993-94] 2 GLR 35
Laws of Ghana (Revised Edition)
Act, 1998 (Act 562)
State Lands Act, 1962,
(Amendment) Decree, 196 NLCD 234
Public Lands Ordinance, Cap. 134
(1951) Rev.
State Property and Contracts
Act, C.A. 6
; (1971) A.C. 508 H.L
CASES REFERRED TO IN JUDGMENT
ERVEN WARNINK BV and Others v. J
TOWNEND & SONS (HULL) LTD and
Others (1982) 3 All ER 312 at
316.
Nartey v. Gati [2010] SCGLR 745 at
751
Tuffuor v Attorney General [1980]
GLR 637.
Sabbah (No. 2) v. The Republic
(No. 2) (2015-2016) SCGLR 402,
Republic v Special Tribunal; Ex
parte Akosah [1980] GLR 592 at
p. 604
OWUSU and Others v. AGYEI and
Others (1980) GLR 1
OMABOE III v. ATTORNEY-GENERAL &
LANDS COMMISSION (2005-2006)
SCGLR 579
ATTORNEY-GENERAL (No. 2) v.
TSATSU TSIKATA (No. 2)
(2001-2002) SCGLR 620 at 639
REPUBLIC v. HIGH COURT (FAST
TRACK DIVISION) ACCRA; EX PARTE
COMMISSION ON HUMAN RIGHTS AND
ADMINISTRATIVE JUSTICE (RICHARD
ANANE INTERESTED PARTY)
(2007-2008) SCGLR 213
COLONIAL SUGAR REFINING COMPANY,
LIMITED V. MELBOURNE HARBOUR
TRUST COMMISSIONERS (1927) A.C.
343 PC; WESTMINSTER BANK LTD. V.
MINISTER OF HOUSING AND LOCAL
GOVERNEMENT
Pool v Guardian Investment Trust
Co Ltd (1921) TC 167
Owusu & Ors v Agyei & Ors [1991]
2 GLR 493
Eisner v Macomber (1919) 252 US
189
Tuffour v Attorney-General
[1980] GLR 637
Ghana Lotto Operators v NLA
[2007-2008] SCGLR 1088
Owusu & Ors v Agyei & Ors [1991]
2 GLR 493.
Mrs Margaret Banful & Anor v The
Attorney-General & Anor, Writ No
J1/7/2016
22ND June, 2017
New Patriotic Party v Rawlings &
Anor [1993-94] 2 GLR 193
Zakaria v Nyimakan [2003-2004]
SCGLR 1.
Republic v Fast Track High
Court, Accra; Ex parte Daniels
[2003-2004] SCGLR 364 at 370
BOOKS REFERRED TO IN JUDGMENT
Maxwell on Interpretation of
Statutes (12th ed.)
Principles of Statutory
Interpretation 13th Edition,
2012,
Land Valuation Act of South
Australia, 1971
Black’s Law Dictionary
The Law of Interpretation in
Ghana, 1st
Ed (1995), Dr S.Y. Bimpong-Buta
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:
DESSENTING -
PWAMANG, JSC
COUNSEL.
ABDUL BAASIT AZIZ BAMBA FOR THE
PLAINTIFF.
DOROTHY AFRIYIE ANSAH, CHIEF
STATE ATTORNEY FOR THE 1ST AND
3RD DEFENDANTS.
KWAME POKU-BOAH FOR THE 2ND DEFENDANT
JUDGMENT
BENIN, JSC: -
The facts as neatly set
out by the 1st and 3rd
defendants in their statement of
case are as follows. By the
State Lands (Barekese – Site for
Dam and its Catchment Area) for
Ghana Water Company Limited-
Instrument 2001, EI 23, the
Government of Ghana acquired
9,669.47 acres of land situate
at Barekese in the Ashanti
Region on behalf of the Ghana
Water Company Ltd. The land
covered about twelve stool
lands. Subsequently, the 2nd
defendant sought advice from the
1st defendant by a
letter dated 1st
April 2008 as to who was to be
paid compensation from the
compulsorily acquired land. That
is whether the compensation
payable should be made under
article 267 into the Stool Lands
Account or to be paid directly
to the stools concerned. The 1st
defendant, in a letter dated 11th
April 2008 advised that article
267(2) of the 1992 Constitution
did not apply to compensation
for stool lands compulsorily
acquired by the State. The
reason that was given was that
acquisition of land made under
the State Lands Act, 1962 (Act
125) as amended, fell under
article 20(2) of the
Constitution, thus it was to be
paid directly to the stools as
owners of the stool land. It is
this advice that the Plaintiff
claims to be fundamentally at
odds with the clear meaning of
“revenue or other payments
whether in the nature of income
or capital from stool lands” as
provided by article 267(2) of
the 1992 Constitution.
Consequently, the
Plaintiff has invoked the
exclusive original jurisdiction
of the Supreme Court pursuant to
articles 2(1) and 130(1) of the
1992 Constitution, seeking the
following reliefs:-
(i)
A declaration that to the
extent that section 19(1) of the
Administration of Lands Act,
1962 (Act 123) empowers the
Minister to direct or order the
payment of moneys from stool
land accounts to local
authorities, the said section is
inconsistent with Article 267
(6) of the 1992 Constitution and
to the extent of the
inconsistency, null and void.
(ii)
A declaration that on a
true and proper interpretation
of Article 267(2) of the 1992
Constitution the expression
“revenue or other payments
whether in the nature of income
or capital from stool lands”
covers compensation payable by
the Government of Ghana for the
compulsory acquisition of
property interests in stool
lands.
(iii)
A declaration that the
payment of compensation for the
compulsory acquisition of
property interests in stool
lands vested in stools directly
to the affected stools instead
of the Office of Administrator
of Stool Lands to be disbursed
in the manner prescribed by
article 267(6) of the 1992
Constitution is
unconstitutional, null and void.
(iv)
An order of perpetual
injunction restraining the
Government of Ghana from paying
compensation for stool lands
(including the Barekese stool
land acquired pursuant to
Barekese- Site for Dam and its
catchment area) for Ghana Water
Company Limited- instrument,
2001 (EI 23), compulsorily
acquired by the State since the
coming into force of the 1992
Constitution to any person or
entity other than the 3rd
Defendant to be disbursed in the
manner prescribed by article
267(6) of the 1992 Constitution.
(v)
Any other consequential
order(s) as this Honourable
Court may deem fit.
PLAINTIFF’S CASE
The Plaintiff contended
that the 1st
Defendant’s interpretation of
article 267(2) of the 1992
Constitution in its advice to
the 2nd defendant
that article 267(2) of the
Constitution did not apply to
compensation for stool lands
compulsorily acquired by the
State and thus, such
compensation must be paid
directly to the Allodial
owners/Stools instead of the
Office of the Administrator of
Stool lands, should not become
the guiding principle for the
payment of compensation to stool
lands.
He also contended that a careful
reading of article 267 of the
1992 Constitution reveals that
the disbursement formula in
clause 6 is intended to give
effect to the notion of stool
land as “ trust property”. In
other words the stool lands are
vested in “the appropriate
stools for and on behalf of, or
in trust for the subjects of the
stool.” Thus any benefit derived
or accruing from property
interest in stool lands vested
in the appropriate stool is not
for the exclusive benefit of the
Allodial owners/Stools but
rather for a broader range of
interest groups consisting of
“chiefs, the traditional
council, stool subjects and for
the development of the area
comprising the stool.”
Further, that article 267(6) of
the 1992 Constitution seeks to
balance all these competing
interests by prescribing a
mandatory formula for the
disbursement of revenues from
stool lands.
Next he posited that it would be
absurd for rents and other
periodic payments from the use
and occupation of the stool
lands to be subject to the
disbursement formula in article
267(6) while compulsory
acquisition of stool lands by
the State which takes away
forever the prospect of periodic
or other payments for the use
and occupation of stool lands,
is not.
It was also his case that
compensation payable by the
State for compulsory acquisition
of stool lands being “revenue or
other payments whether in the
nature of income or capital from
stool lands” must be paid to the
Office of the Administrator of
Stool lands.
He opined that the legal
position as stated above, to the
effect that all revenues or
incomes in respect of Stool
lands must be paid into the
Stool Lands Account is not new
since it has been the law since
1962. Thus the 1969 Constitution
per article 164(2) provided for
the establishment of the Stool
lands account into which shall
be paid stool land revenue of
which appropriate portions were
allotted to the stool,
traditional authority and local
district authorities. Similarly
under the 1979 Constitution, per
article 190(2) all moneys or
revenues from stool lands were
to be paid into the appropriate
stool lands account.
He reiterated the history of
disbursement of stool revenues
that at first they were
collected and disbursed by the
Minister in charge of lands,
then by the Regional Councils,
then the Lands Commission and
finally the Administrator of
Stool Lands to be disbursed in a
manner canvassed under article
267(6) of the 1992 Constitution.
In his view the reason for the
disbursement formula was to
remedy the past problems and
abuses associated with stool
lands revenue by creating
various institutional mechanisms
to ensure that revenues from and
compensation funds for, stool
lands are fairly distributed to
the stools, traditional
authorities and district
assemblies for developmental
projects for the benefit of
present and future generations
unborn.
Consequently, the meaning of
“revenue or other payments
whether in the nature of income
or capital from stool lands” in
the context of article 267
cannot be limited by the meaning
of “rents, dues or royalties”.
The qualifier “whether in the
nature of income or capital from
stool lands means exactly what
it means – any conceivable money
arising from or in connection
with stool lands of whatever
description. In other words, the
principles of “Ejusdem generis”
and “Noscitur a Sociis” are
totally irrelevant to the proper
construction of article 267 of
the 1992 Constitution.
DEFENDANTS’ CASE
The 1st and 3rd
Defendants contended that the
compensation payments by the
State for compulsory acquisition
of stool lands do not fall under
“revenue or other payments
whether in the nature of income
or capital from stool lands” in
article 267(2) of the
Constitution and as such, should
not be paid into the stool lands
account but rather should be
paid directly to the stools.
That the formula used in
article 267 of the 1992
Constitution with respect to
rents, dues, royalties, revenues
or other payments in the nature
of income or capital would mean
other payments of periodic
nature. A compensation payment
under article 20 of the
Constitution is a one off
payment. It is not a periodic
payment therefore it is not
encompassed in article 267
according to the principles of
“Ejusdem Generis” and “Noscitur
a Sociis”
In their view, section 19 of Act
123 does not introduce new
disbursement arrangements that
are contrary to article 267(6)
of the 1992 Constitution.
They submitted that there is a
distinction between articles 20
and 267. Unlike rents, dues and
royalties which do not
completely deprive a person of
ownership of his/her property,
compensation is meant to be for
person/s deprived of his/their
property in most cases forever
and therefore it is only fair to
pay monies to them as stated
under article 20(2).
In addition to these
submissions made by the 1st
and 3rd Defendants,
the 2nd Defendant
contended that following the
revision made to Act 123,
section 19(1) has been brought
into conformity with the 1992
Constitution especially through
the provision of a Footnote to
section 19 in the revised Act
123 which states that all
payments out of the Stool Land
Account should be governed by
clause 6 of article 267 of the
1992 Constitution.
AGREED ISSUES
The parties agreed on the
following issues for
determination by the Court:-
1.
Whether or not sections
19(1), (2) and/or (3) of Act
123, to the extent that they
give the Minister responsible
for lands the power to determine
any proportion of moneys to be
paid from stool lands accounts
to local authorities are
inconsistent with article 267(6)
of 1992 Constitution and are
therefore null and void.
2.
Whether or not the
expression “revenue or other
payments whether in the nature
of income or capital from stool
lands” in article 267(2) of the
Constitution covers compensation
payable by the State for the
compulsory acquisition of stool
lands.
CONSIDERATION BY THE COURT
Jurisdiction of the Court
The Plaintiff has invoked
the original jurisdiction of the
Court pursuant to articles 2(1)
and 130(1) of the 1992
Constitution seeking the reliefs
set out above. Before delving
into the merits of the case, it
becomes necessary to determine
whether the Plaintiff has
effectively invoked the
interpretative jurisdiction of
the Supreme Court.
Articles 2(1) and 130(1)
of the 1992 Constitution state
as follows
Article 2
(1) A person who alleges
that -
(a) An enactment or
anything contained in or done
under the authority of that or
any other enactment; or
(b) any act or omission of
any person;
is inconsistent with, or
is in contravention of a
provision of this Constitution,
may bring an action in the
Supreme Court for a declaration
to that effect.
Article 130
(1) Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in article
33 of this Constitution, the
Supreme Court shall have
exclusive original jurisdiction
in -
(a) all matters relating
to the enforcement or
interpretation of this
Constitution; and
(b) all matters arising as
to whether an enactment was made
in excess of the powers
conferred on Parliament or any
other authority or person by law
or under this Constitution.
As stated above, the
Plaintiff has come under
articles 2(1) and 130 (1) of the
1992 Constitution. These
provisions have been the subject
of several decisions by the apex
Court. In the case of Nartey
v. Gati [2010] SCGLR 745
at 751 the Court stated,
per Date-Bah, JSC that:-
“The context within which this
Court will exercise its original
jurisdiction, whether by way of
a reference or otherwise, was
set out lucidly by Anin JA in
the locus classicus in Republic
v Special Tribunal; Ex parte
Akosah [1980] GLR 592 at p. 604
as follows (in relation to the
1979 Constitution):
‘From the foregoing dicta, we
would conclude that an issue of
enforcement or interpretation of
a provision of the Constitution
under article 118(1) (a) arises
in any of the following
eventualities:
(a)
where the words of the
provision are imprecise or
unclear or ambiguous. Put in
another way, it arises if one
party invites the court to
declare that the words of the
article have a double-meaning or
are obscure or else mean
something different from or more
than what they say;
(b)
where the rival meanings
have been placed by the
litigants on the words of any
provision of the Constitution;
(c)
where there is a conflict
in the meaning and effect of two
or more articles of the
Constitution, and the question
is raised as to which provision
should prevail;
(d)
where on the face of the
provisions, there is a conflict
between the operation of
particular institutions set up
under the Constitution, and
thereby raising problems of
enforcement and of
interpretation.’ ”
This Court also stated in
that case that no case for
enforcement or interpretation
arises where the language of the
article of the Constitution is
clear, precise and unambiguous.
The instant case raises a
question of constitutional
interpretation because the
controversy between the
Plaintiffs and Defendants
centres on the rival positions
taken by the parties on the
issue of whether compensation
for stool lands compulsorily
acquired by the State must be
paid to the Office of the
Administrator of Stool Lands
(called the Administrator) or
rather to the Allodial/Stool
owners. It also raises for the
court’s consideration the
constitutionality of section
19(1) of Act 123 in the light of
article 267 of the Constitution.
These questions bring up for the
Court’s decision, the true
meaning, purpose and application
of article 267 of the 1992
Constitution. The Court’s
exclusive original jurisdiction
has therefore been properly
invoked.
In the interpretation of
the Constitution, this Court has
stated in a number of cases that
a broad and liberal approach
should be used. These cases
include Tuffuor v Attorney
General [1980] GLR 637.
In the case of
Sabbah (No. 2) v. The Republic
(No. 2) (2015-2016) SCGLR 402,
this Court stated per Wood
CJ at page 422 that:-“Another
cardinal rule of construction
requires that the constitutional
text under consideration must
not only be broadly and
liberally interpreted, but
purposively construed as a
whole, in the context of its own
wording. Constitutional
adjudication does not therefore
admit of piecemeal and
out–of-context mechanical
interpretation of words in the
written text.”
This principle was earlier
reiterated and applied by this
Court in the case of New
Patriotic Party v Attorney
General (31st
December) [1993-94] 2 GLR 35
at 50 per Archer CJ.
Issue 1
The issue has been set out
above. With regard to this
issue, the plaintiff submitted
that, pursuant to the provisions
of the 1992 Constitution, all
revenues or incomes in respect
of Stool lands must be paid to
the Office of the Administrator
of Stool Lands. The Plaintiff’s
reason is that from the wording
of article 267(2) of the 1992
Constitution, all rents, moneys
or other payments whether in the
nature of income or capital
arising from or in connection
with stool lands are to be paid
into the requisite stool lands
accounts with the Office of the
Administrator of Stool Lands to
be disbursed in accordance with
the prescribed formula under
article 267(6). Consequently, to
the extent that section 19 of
the Administration of Lands Act
confers power on the Minister of
Lands to determine the
proportion of moneys from stool
lands account that should go to
local authorities it is
inconsistent with article 267 of
the 1992 Constitution.
Conversely, the Defendants
contend that the impression the
plaintiff gives that a dual
system of payment exists and/or
that the Minister responsible
for Lands determines the
proportion of monies payable to
the Stool lands account is
erroneous. The defendants
contend that there has been a
revision of the material
provisions of Act 123 to bring
them in conformity with the
Constitution following the
review of the Laws of Ghana
pursuant to Act 562.
Consequently, the said section
19(1) was modified in the
revised statute to cure the
anomaly in Act 123 to the effect
that the Minister’s power to
determine amounts payable to the
local authorities was subject to
article 267(6) of the 1992
Constitution. The change was
effected by the Laws of Ghana
(Revised Edition) Act, 1998 (Act
562) which came into force
on 5th February 1999.
Prior to the revision of the
laws of Ghana, the
Administration of Lands Act 1962
(Act 123) section 19(1) provided
that:
“Out of the moneys standing to
the credit of the Stool Lands
Account there shall, subject to
subsection (2) of this section
be paid to the local authorities
in whose areas the lands are
situated from which those moneys
are derived such amounts as the
Minister may by order
determine.”
The effect of this provision
clearly, was to give the
Minister the power to determine
amounts payable to local
authorities from stool lands
accounts.
However, after the coming into
force of Act 562, the provisions
of Act 123 were brought in
conformity with article 267 of
the 1992 Constitution.
Accordingly, section 19(1) was
modified and it now reads:
“Out of the moneys standing to
the credit of the Stool Lands
Account, there shall, subject to
subsection (2) be paid to the
local authorities in whose areas
the lands are situated from
which these moneys are derived
the amounts of money that the
Minister may by order determine
or as required to be paid
under article 267 of the 1992
Constitution.” (Emphasis
supplied)
Furthermore, Counsel for
the 2nd Defendant
submitted that “since the
Footnote to the proviso of
section 19 of Act 123 is
considered as an aid to the
construction of an enactment as
provided in section 15 of the
Interpretation Act, 2009 (Act
792), same restricts the powers
given to the Minister by the
provision under the Act and
therefore section 19(1) read in
the light of the footnote admits
no ambiguity which warrants an
interpretation.”
Section 15 of the
Interpretation Act provides:
Titles placed at the head or
beginning of a subdivision of an
enactment and notes and
references placed before the
beginning of a provision are
intended for convenience of
reference only but may be used
as an aid to construction of the
enactment.
This provision has nothing
to do with footnotes in an
enactment even when read
cursorily. The words used are
unambiguous as they deal with
headings and notes placed at the
beginning of a provision.
‘Heading’, ‘head’, and
‘beginning’ cannot in any way be
stretched to cover footnotes. We
thus have to resort to the
saving provision in section 3 of
the said Act 792 which reads:
This Act shall not be construed
as excluding the application to
an enactment of a rule of
interpretation or construction
applicable to that enactment and
not inconsistent with this Act.
This provision enables the
court to apply any known and
legally acceptable rule of
construction which is relevant
and applicable to the enactment
that is being construed.
However, a footnote is regarded
as a mode of rendering part of
an enactment, and thus
constitutes an integral part of
the enactment; it is not merely
an aid to the construction of
the enactment.
Bennion on Statutory
Interpretation, 5th
edition at page 750 expresses it
in these words: “If material is
put into the form of a footnote
it is still fully a part of the
Act, and must be construed
accordingly.” See also the case
of ERVEN WARNINK BV and Others
v. J TOWNEND & SONS (HULL) LTD
and Others (1982) 3 All ER 312
at 316.
Since it forms part of the
revised section 19(1) of Act
123, the footnote is core to the
understanding of the new
provision. The footnote in
question reads: “All payments
made out of the Stool Lands
Account is governed by clause
(6) of article 267 of the 1992
Constitution”
Clause 6 of article 267
provides the disbursement
formula of revenues in the Stool
Lands Account including payment
to District Assemblies, formerly
local authorities.
From the combined effect
of these provisions above, it is
evident that with the coming
into force of the 1992
Constitution specifically
article 267, the distribution of
revenue from the Stool Lands
account is intended to be
governed solely by the Office of
the Administrator of Stool Lands
and no other person as well as
in accordance with the formula
enshrined in clause 6 of article
267. Section 19(1), even after
it has been modified, appears to
permit the Minister or the
Administrator to apportion funds
to the local authorities. In
this respect, section 19 of Act
123 which gives the Minister
responsible for lands the power
to determine any proportion of
moneys to be paid from stool
lands accounts to local
authorities is inconsistent with
article 267 (1), (2) and (6) of
the 1992 Constitution.
Consequently, to the extent of
the inconsistency, that part of
section 19(1) of Act 123 namely
“the amounts of money that the
Minister may by order determine
or” is hereby declared to be
unconstitutional. Indeed the
various roles assigned to the
Minister responsible for Lands
to collect and disburse revenue
from stool lands in sections 17,
18 and 19 of Act 123 are all
inconsistent with article 267 of
the Constitution, so all these
provisions in Act 123 must be
applied subject to article 267
of the Constitution.
Issue 2
This issue has also been
set out above. Article 267 (2)
(a) of the 1992 Constitution
provides that:
“2. There shall be established
the Office of the Administrator
of Stool Lands which shall be
responsible for –
(a) the establishment of a stool
land account for each stool into
which shall be paid all rents,
dues, royalties, revenues or
other payments whether in the
nature of income or capital from
the stool lands.”
As regards this issue, the
Plaintiff contends that the
general words “revenue or other
payments whether in the nature
of income or capital from stool
lands” covers compensation
payable by Government in respect
of Stool lands compulsorily
acquired. Plaintiff’s argument
is premised on the fact that the
addition of “whether in the
nature of income or capital”
modifying other payments makes
it different from the class of
specific items listed as “rents,
dues, royalties, revenues.” The
plaintiff’s arguments have
already been set out in detail.
The defendants, on the
other hand, argue that where in
a statute or legal document,
there are general words
following particular or specific
words, the general words must
have their meaning restricted or
confined to the meaning as
conveyed by the specific words.
This is referred to as the
principles of Noscitur a Sociis
and Ejusdem Generis. Thus,
according to the defendants, the
words “rents, dues, royalties,
revenues” specifically create a
genus of periodic payments which
the general words ‘other
payments whether in the nature
of income or capital’ are
restricted to. Consequently, the
general words in article
267(2)(a) do not include
compensation payable by
Government in respect of Stool
Lands compulsorily acquired by
the State.
The defendants further
claimed that, by virtue of
article 267 the whole of the
interest in the stool land is
not extinguished, but the stool
is entitled to compensation so
called for compulsory
acquisition which is governed by
article 20 of the Constitution.
Under Act 123 the State as
grantee pays an annual amount
(rent) for its occupation and
use of the stool land and these
rent payments are what are paid
into the Stool Lands Account to
be disbursed by the
Administrator under article
267(6) of the Constitution.
The rule of construction
Noscitur a Sociis simply means
that a word is to be judged by
the company it keeps. In other
words, the meaning of a doubtful
word may be ascertained by the
meaning of the words associated
with it. The doctrine of
Noscitur a Sociis is only a
broader version of the Ejusdem
Generis rule.
The Ejusdem Generis rule
is a rule of interpretation
which is usually applied where
general words follow specific
words and such specific words
successfully form a genus.
Nevertheless, this rule will not
apply in such situations where
there is something to show that
a wider sense was intended.
Thus, Maxwell on
Interpretation of Statutes (12th
ed.) in explaining the
operation of this rule of
construction stated thus:
"In the abstract, general words,
like all others, receive their
full and natural meaning, and
the courts will not impose on
them limitations not called for
by the sense or objects of the
enactment ...But the general
word which follows particular
and specific words of the same
nature as itself takes its
meaning from them and is
presumed to be restricted to the
same genus as those words ... In
other words, the general
expression is to be read as
comprehending only things of the
same kind as that designated by
the preceding particular
expressions, unless there is
something to show that a wider
sense was intended ...”
Similarly, Justice G P
Singh in his book, Principles
of Statutory Interpretation 13th
Edition, 2012, states at
page 514 that the Ejusdem
Generis rule usually applies
only where “…there is no
indication of a different
legislative intent.” In effect
this means that where it is
shown that the legislator
intended something different
from the general words being
construed in the same way as the
specific words, the Ejusdem
Generis rule would not apply.
Another aspect of this
principle is stated by Justice G
P Singh in his book,
referred to supra, at
page 516 that “in cases where
particular words can belong to a
broad based genus it is not open
to confine them to a narrower
genus so as to limit the meaning
of the general words.”
Whilst the plaintiff was
of the view that these rules of
construction do not apply, the
defendants strongly believed
that they do. In applying these
principles to the instant case,
rents, dues, royalties and
revenues which are specifically
mentioned under article 267(2)
of the 1992 Constitution are
capable of forming the narrower
genus of ‘periodic payments’ as
espoused by the defendants.
However the expression “other
payments whether in the nature
of income or capital” is also
capable of forming a broader
genus consisting of general
payments, whether periodic or
lump sums, which are obtained
from using or dealing with stool
land, which construction suits
the plaintiff’s case.
Much as we treat with respect
these arguments in respect of
which appropriate rule/s of
construction to apply, we bear
in mind that the Constitution is
not an ordinary statute, so we
need to interpret it purposively
in order to come out with a
clear decision reflecting the
objects and purposes of the
provisions being interpreted.
Rules of construction may be
helpful in a limited number of
cases just to supplement the
interpretation but counsel and
the court cannot place total
reliance on such rules of
construction which does not
achieve the purpose of the
enactment. Therefore what is
relevant in such a
constitutional interpretation is
the view that where the object
or purpose of the provisions may
be ascertained from the words
employed in the Constitution
itself or other relevant
reference materials like the
Constitutional Proposals, these
rules of construction will not
apply. Thus they are servants
not masters and should thus not
play a lead role in the subject
of interpretation.
It is desirable to approach this
issue by first paying regard to
the antecedent legislations
which have relevance to the
provisions of the Constitution
under consideration, bearing in
mind that the lawmaker is
presumed to know the state of
the existing law. Next we shall
endeavor to find out the intent
of the framers of the
Constitution as far as it may be
ascertained from the provisions
of the Constitution. There are
current statutes that regulate
land acquisition by the State
and management of stool lands,
as the case may be. These
existing statutes are the
Administration of Lands Act,
1962 (Act 123) and the State
Lands Act, 1962, (Act 125) both
of which have undergone some
amendments. The scope of these
two statutes was discussed at
lengt h in the case of OWUSU and
Others v. AGYEI and Others
(1980) GLR 1 by the High Court
presided over by Roger Korsah J.
That case travelled all the way
to the Supreme Court, reported
in (1991) 2 GLR 493, which
therefore had the opportunity to
explain the scope and
application of the two
enactments. In affirming the
High Court's decision it held
that compulsory acquisition of
stool land by an instrument
could only be done under section
1(1) of Act 125 which provides
that:
Where it appears to the
President in the public interest
so to do, the President may, by
executive instrument, declare
the land specified in the
instrument, other than land
subject to the Administration of
Lands Act, 1962 (Act123), as
land required in the public
interest.
Consequently it held that the
modalities provided under Act
123 do not apply to such an
acquisition. Osei-Hwere JSC put
it this way at page 511:
"......the Court of
Appeal....was in error when it
held that Act 123 was the
operative statute for the
compulsory acquisition of stool
land......The provision in NLCD
234......that 'the
Administration of Lands Act,
1962 shall not apply to any such
land....' seems clearly to mean
that the regimen of the
administration contemplated
under Act 123 (such as sections
7, 17, 21, 22 and 23 which the
Court of Appeal thought were
relevant) cannot be called into
service in respect of such stool
lands
compulsorily acquired under
section 1(1) of Act 125."
The amendment contained in NLCD
234 namely State Lands Act,
1962, (Amendment) Decree, 1968
has been re-enacted as section
1(3) of Act 125. It reads:
Where the President is satisfied
that special circumstances make
it expedient that a particular
land which is subject to the
Administration of Land Act, 1962
(Act 123) should be declared
under subsection (1) as land
required in the public interest,
the President may, by executive
instrument, declare that land as
land required in the public
interest, and the Administration
of Lands Act, 1962 shall not
apply to the land in respect of
which an executive instrument is
made in accordance with this
subsection.
This provision completely
excludes the application of the
provisions of Act 123 from
compulsory acquisition that is
carried out under Act 125.
Thus it is clear that Act 123
deals with acquisition of stool
land by the State for its
ordinary operation, in the form
of leases, grants, rentals and
what have you, described in
section 10(1) of Act 123 as land
acquired for "occupation and
use." The Act says that payments
due under such acquisition and
other dealings with stool land
that generate revenue, being
distinct from compensation for
compulsory acquisition, should
be paid into a stool lands
account under the Minister of
Lands, but now under the
Administrator by virtue of
Article 267 of the Constitution
1992, as well as under section
19(1) of Act 123, as amended.
On the other hand, Act 125
applies where the State
compulsorily acquired land
including stool land. Here the
statute makes provision for
payment of compensation to be
made directly to the person or
entity whose land has been
compulsorily acquired. See
section 4(1) and (2) thereof.
The two different modes of who
receives the payment is a
distinctive feature of the two
enactments.
Before the promulgation of Act
125, compulsory acquisition of
stool land had been regulated by
the Public Lands Ordinance of
1876, re-enacted as Public Lands
Ordinance, Cap. 134 (1951) Rev.
This was replaced by the State
Property and Contracts Act, 1960
(C.A. 6). It is noteworthy that
the State Property and Contracts
Act was in force when Act 123
was legislated but the latter
did not repeal the former. It
was Act 125 which repealed the
State Property and Contracts
Act, C.A. 6 and brought its
salient provisions within its
fold, namely the State's right
to engage in compulsory
acquisition and the mode of
paying compensation and who the
recipient should be.
It therefore becomes apparent,
that the law has always
recognized and indeed maintained
two distinct modes of acquiring
stool land, one under Act 123
and the other under Act 125. In
the OWUSU v. AGYEI case, supra,
the court made it clear that
compensation was entirely
distinguishable from revenue.
The Supreme Court upheld the
High Court's judgment and
restored same after the Court of
Appeal had set it aside. Where a
particular word in an enactment
has received construction by a
court of competent jurisdiction,
that construction should be
applied to a later legislation
with the same or similar
objects, in which the same word
or expression is employed. The
reason being that, unless the
lawmaker intended something to
the contrary in the subsequent
legislation, he must be deemed
to have intended the word or
expression to have the same
meaning as in the old law as
construed by the court.
We should not lose sight of the
employment of expressions like
“rents” "revenue" etc in Act 123
which have been repeated in
article 267(2) of the
Constitution; and the use of the
word or expression
“compensation” in Act 125 which
is repeated in article 20(2) of
the Constitution. The choice of
these words was no sheer
coincidence but deliberate in
order to maintain the status quo
whereby a clear distinction had
all along been maintained
between lands compulsorily
acquired and lands acquired by
other means including
leaseholds, each of which
attracted a different mode and
procedure for payment and also
the recipient of such payment
was also different, clearly
signifying that the two are not
the same and were not intended
to be the same.
The expression “any other
payments, whether in the nature
of income or capital” is not a
novelty introduced by the 1992
Constitution. It is significant
to note that the provision in
article 267(2) is almost a
verbatim reproduction of section
17(2) of Act 123. The latter
provision reads:
Revenue for the purposes of this
Act includes the rents, dues,
fees, royalties, revenues,
levies, tributes and any other
payments, whether in the nature
of income or capital, from or in
connection with lands subject to
this Act.
This throws light on what
interpretation to place on
article 267(2) of the
Constitution that the entire
expressions or words used are
intended to mean revenue
accruing from dealings with
stool lands, other than those
acquired compulsorily under Act
125 and article 20(2) of the
Constitution. Article 267(6)
buttresses this view; it
prescribes the formula for
disbursing "revenue accruing
from stool lands." It uses only
‘revenue’ and leaves out the
other expressions like
royalties, fees etc used in
clause 2 of article 267 but it
is my view that reading article
267 as a whole the expression
"the revenue accruing from stool
lands" employed in clause 6 is
intended to encompass all the
various forms of receipts
mentioned in clause 2. Thus the
use of the expression "revenue"
in section 17(2) of Act 123 has
the same meaning as in article
267(6) of the Constitution. And
before the coming into force of
the 1992 Constitution, payments
under section 17(2) of Act 123
did not include compensation
payable under Act 125. Therefore
section 17(2) of Act 123 having
been re-enacted as Article 267
of the Constitution, unless
express and unambiguous words
exist to the contrary, it is
clear the intention was for the
constitutional provision to
embrace the same payments as
were made under section 17(2) of
Act 123, and this excluded
compensation under Act 125.
There is yet another reason for
this clear distinction and it is
the fact that under Act 123 the
Minister of Lands had a role to
play in such land management, a
role which has been expanded and
entrusted to the Administrator
to manage and collect revenue
from stool lands and disburse
same in accordance with the
formula set out in article
267(6) of the Constitution. As
Osei-Hwere JSC observed in the
OWUSU v. ADJEI case, supra at
511 "The view that section 17 of
Act 123 is inapplicable by
reason of the compulsory
acquisition of stool land under
section 1(1) of Act 125 commends
itself to practical reality
because if the substratum or
foundation (i.e. the stool land)
is gone then there is nothing to
be administered."
The Administrator is responsible
to administer stool lands which
have not been compulsorily
acquired by the State. And it is
in respect of such lands which
he administers that the rents,
royalties etc mentioned in
clause 2 of article 267 could be
collected and disbursed by him
as revenue under clause 6. Act
125 and article 20 of the
Constitution make provision for
the payment of compensation to
the land owners and persons with
interest in land compulsorily
acquired under those
legislations. And as was stated
by this court in the case of
OMABOE III v. ATTORNEY-GENERAL &
LANDS COMMISSION (2005-2006)
SCGLR 579 lands compulsorily
acquired formed part of public
lands under the administration
of the Lands Commission under
article 258(1) of the
Constitution. It sounds
reasonable and logical that
since the Administrator does not
administer lands compulsorily
acquired by the State, payments
accruing from such lands fall
outside the remit of his
authority, which is to collect
and disburse revenue accruing
from only stool lands which are
under his administration.
Consequently, these sets of
legislations namely Act 123 and
article 267 of the Constitution
on one side, and Act 125 and
article 20 of the Constitution
on the other side, must be given
effect to simultaneously and
either must not be subsumed
under the other; they can
co-exist harmoniously and must
thus be allowed to operate
independently of each other
under the principle of
harmonious interpretation as the
legislators intended them to be.
This clear distinction between
compulsory acquisition and
others should be observed
because of the policy of the
law, duly recognized in article
20 of the Constitution as a
human rights issue, that whoever
is deprived of his land through
compulsory acquisition should be
adequately compensated, the
applicable principle being one
of equivalent re-instatement.
One other factor to consider is
that if we are to accede to the
plaintiff’s argument, it would
mean that we have to add the
word or expression
‘compensation’ to the list set
out in clause 2 of article 267.
This is so because except that
is the case, none of the
expressions in article 267(2)
could be described as
compensation. And to do so would
be legislating by amending this
portion of the Constitution,
something which is beyond the
court’s power which is to
interpret and enforce the
Constitution, and not to
legislate. This court has had
cause to caution on the
insertion of words into a
constitutional provision as that
would amount to straying into
the realm of legislation. See
the dictum of Acquah JSC (as he
then was) in the review
application in the case of
ATTORNEY-GENERAL (No. 2) v.
TSATSU TSIKATA (No. 2)
(2001-2002) SCGLR 620 at 639
which was cited with approval in
the case of REPUBLIC v. HIGH
COURT (FAST TRACK DIVISION)
ACCRA; EX PARTE COMMISSION ON
HUMAN RIGHTS AND ADMINISTRATIVE
JUSTICE (RICHARD ANANE
INTERESTED PARTY) (2007-2008)
SCGLR 213 per Wood CJ at 243.
Thus from the totality of
article 267, the Administrator
replaced the Minister in
performing the functions set out
in Act 123, and whatever
receipts were coming in under
Act 123 were described as
revenue, a description which has
been retained in clause 6 of
article 267 of the Constitution.
The use of the expression
"revenue" in article 267(6) to
represent all the various
receipts mentioned in clause 2
of this article manifests a
clear intent to invoke the rule
noscitur a sociis and its
partner ejusdem generis. And
what is provided for under
article 20 and Act 125 is
compensation which becomes
payable following compulsory
acquisition, and the payment is
made to land owners and persons
interested in the land. And most
significantly lands compulsorily
acquired are administered by the
Lands Commission and not the
Administrator. Thus these modes
of acquisition, administration,
payments and institutional or
regulatory arrangement/framework
run parallel and are not
intended or meant to be fused.
What was the intent of the
framers of the Constitution?
We have made references in
the foregoing discussions to
relevant points which make the
legislative intent manifestly
clear and certain. We shallll
proceed to address article 20 of
the Constitution that deals
specifically with matters
pertaining to compulsory
acquisition of land, including
stool land. The fact that there
is no explicit provision in the
1992 Constitution as to who
should receive compensation from
stool land compulsorily acquired
by the State must be due to the
fact that it has never been in
doubt that the stool that holds
the inalienable title to stool
land has always been the
recipient of such compensation
payment. The provisions in
article 20 clauses 2 and 6
inherently recognize the
existing state of affairs,
bearing in mind the concept of
land ownership in the country.
These provisions equally throw
light on the intent of the
framers of the Constitution as
to who should be paid such
compensation. These provisions
read:
20(2) Compulsory
acquisition of property by the
State shall only be made under a
law which makes provision for –
(a)
the prompt payment of fair
and adequate compensation; and
(b)
a right of access to the
High Court by any person who has
an interest in or right over the
property whether direct or on
appeal from any other authority,
for the determination of his
interest or right and the amount
of compensation to which he is
entitled.
20(6) Where the property
is not used in the public
interest or for the purpose for
which it was acquired, the
owner of property
immediately before the
compulsory acquisition, shall be
given the first option for
acquiring the property and
shall, on such re-acquisition
refund the whole or part of the
compensation paid to him as
provided for by law or such
other amount as is commensurate
with the value of the property
at the time of the
re-acquisition. (emphasis
supplied)
The provision in clause 2,
supra, enables any person with
interest in land compulsorily
acquired to pursue his claim for
compensation at the High Court.
Surely neither the Administrator
nor the District Assembly can
pursue such claim because they
have no direct interest in or
legitimate claim over stool
land. It is unreasonable to
envisage that the stool would
expend money to pursue such
claim in court only for the
benefit to be paid to another
person.
Clause 6, supra, is even
more relevant to the ongoing
discussion. This provision
entitles only the owner of the
land to the reversionary
interest unless he declines
same. And he is required to
refund the entire amount of
compensation that has been paid
to him, which I understand to
mean in cases where no part of
the land has been utilized. On
the other hand he has to make a
part refund, which I understand
to mean payment for the part of
the land un-utilized. The refund
should be done in accordance
with the law, which in this
context means the law enacted
for the purpose of the
compulsory acquisition under
clause 2 of article 20, supra,
or any other relevant law. The
only irresistible inference that
may be drawn from this provision
is that it was intended that the
compensation should be paid to
the land owners.
This provision clearly
underscores the existing law and
time-honoured practice whereby
such compensation has always
been paid to the stool and any
person with real interest in the
land. It is only logical that
the person who has been paid the
amount of compensation should be
the one to refund it in the
event of a reversion. The
framers of the Constitution
would not have asked the owner
of the land to refund the
compensation if their intention
was that compensation should, in
the first place, be paid to the
Administrator. It would indeed
be absurd and palpably
capricious for them to have
intended such a result; such
absurdity and capriciousness
should not be attributed to the
framers of the constitution.
Their intention is clearly
deducible from clause 6, supra,
that the owner of the land
should be paid the compensation
so that in the event of a
reversion he would be in a
position to refund same.
Elsewhere, the courts have
been guided by and have applied
the well-known principle that a
statute should not be held to
take away private rights of
property without compensation
unless the intention to do so is
expressed in clear and
unambiguous terms. See these
cases: COLONIAL SUGAR REFINING
COMPANY, LIMITED V. MELBOURNE
HARBOUR TRUST COMMISSIONERS
(1927) A.C. 343 PC; WESTMINSTER
BANK LTD. V. MINISTER OF HOUSING
AND LOCAL GOVERNEMENT; (1971)
A.C. 508 H.L. Even though
these cases cited were decided
upon some Acts of Parliament,
the principle is sound, save
that it may be applied subject
to article 20 of the
Constitution which completely
eliminates compulsory
acquisition without payment of
compensation. In the Colonial
Sugar Refining case, supra, the
Privy Council held the view,
which we agree with, that it was
desirable to apply a more
reasonable construction, and one
which would not have the effect
of destroying private rights
already acquired. If it was
intended that compensation
should be paid to the
Administrator, the law would
have said so expressly and
unambiguously, since the owner
of the land is being deprived of
that benefit. We cannot infer
that from article 267(2) of the
Constitution. And as was
suggested by Lord Reid in the
Westminster case, supra, if the
law does not expressly say the
subject should not be paid
compensation thereby raising
some reasonable doubt in the
mind of the court, the law
should be construed for his
benefit. It has not become
necessary for us to go that far,
as Lord Reid suggested, because
as pointed out earlier, the only
irresistible inference to be
drawn from clause 6 of article
20, supported by provisions of
Act 125 is that compensation is
intended to be paid to
landowners and/or persons with
real or direct interest in the
land.
Conclusion
For the foregoing reasons we
hold that the expression "or
other payments whether in the
nature of income or capital" in
article 267(2) does not
encompass compensation payable
in respect of land compulsorily
acquired under Section 1(1) of
Act 125 and/or article 20 of the
Constitution. Consequently,
Relief (i) is partly granted in
these terms: to the extent that
the Minister responsible for
lands is reserved a role to play
in the disbursement of stool
lands revenue to local
authorities, section 19(1) of
Act 123 is inconsistent with
article 267(2) and (6) of the
Constitution and to that extent
is declared unconstitutional and
is accordingly struck down.
For reasons advanced above,
Reliefs (ii), (iii) and (iv) are
denied.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
J. V. M.
DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P.
BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S.
GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO
(MRS)
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
My respected brother,
Benin JSC has just delivered a
brilliant judgment which
represents the views of the
majority of the court in this
case. I had the benefit of
reading it beforehand and have
given serious thought to the
reasoning in it but tried as I
did, I could not bring myself to
come to terms with it so I
decided to take a lone path. The
following is how I see this
case.
By a writ filed in this
court on 15th July, 2015, the
plaintiff in his capacity as a
citizen of Ghana claimed against
the defendants for the following
reliefs;
1. A declaration that to
the extent that Section 19(1) of
the Administration of Lands Act,
1962 empowers the Minister to
direct or order the payment of
moneys from stool land accounts
to local authorities the said
section is inconsistent with
Article 267(6) of the 1992
Constitution and to the extent
of the inconsistency, null and
void;
2. A declaration that on a
true and proper interpretation
of Article 267(2) of the 1992
Constitution the expression
"revenue or other payments
whether in the nature of income
or capital from stool lands"
covers compensation payable by
the Government of Ghana for the
compulsory acquisition of
property interests in stool
lands vested in stool lands
(sic);
3. A declaration that the
payment of compensation for the
compulsory acquisition of
property interest in stool lands
vested in stools directly to the
affected stools instead of the
office of Administrator of Stool
Lands to be disbursed in the
manner prescribed by Article
267(6) of the 1992 Constitution
is unconstitutional, null and
void;
4. An order of perpetual
injunction restraining the
Government of Ghana from paying
compensation for stool lands
(including the Berekese stool
land acquired pursuant to
Barekese-Site for Dam and its
catchment area) for Ghana Water
Company Limited-Instrument 2001
(EI 23), compulsorily acquired
by the State since the coming
into force of the 1992
Constitution to any person or
entity other than the 3rd
defendant to be disbursed in the
manner prescribed by Article
267(6) of the 1992 Constitution.
5. Any other consequential
orders as this Honourable Court
may deem fit.
FACTS
The facts of this case are
quite simple. In 2001 the
Government of Ghana, by
compulsory acquisition pursuant
to the provisions of the State
Lands Act, 1962 (Act 125),
acquired a tract of land in
Ashanti Region for the Barekese
Dam and for a catchment area of
the dam. After ascertaining the
allodial owners to be some
twelve stools, the Land
Valuation Board calculated the
compensation payable and
informed the stools concerned
that the money would be paid to
the Office of Administrator of
Stool Lands (OASL) in accordance
with Article 267 of the 1992
Constitution. The stools through
their lawyer strongly objected
to payment of the compensation
to the OASL contending that it
was only where lands were
occupied pursuant to the
Administration of Lands Act,
1962 (Act 123) that revenue
accruing thereto would be
payable to the OASL. His
position was that where stool
lands are acquired under Act 125
the compensation was payable
direct to the stools concerned.
The Land Valuation Board in
April 2008 wrote to the 1st
defendant to advise them as to
the correct position of the law
having regard to the arguments
of the lawyer for the claimant
stools in the Barekese Dam
acquisition as against the
constitutional provisions. The
1st defendant in its advise
concurred with the position
taken by the claimants lawyer
that Article 267 did not apply
to compensation for compulsory
acquisition of stool lands. From
the processes filed in this case
it is evident that the
compensation was subsequently
paid directly to the claimants
in the Barekese acquisition but
the plaintiff contends that the
advice rendered in relation to
the Barekese Dam acquisition has
been adopted by the 2nd
defendant for payment of
compensations for stool lands
compulsorily acquired, which
according to him, is
unconstitutional.
Though the OASL was made a
party to this case it did not
file a separate statement of
case but contended itself with
the 1st defendant's answer in
their joint statement of case
which was a confirmation of its
earlier advise. The 2nd
defendant, who now has the Land
Valuation Board under it as a
division called Land Valuation
Division, has abandoned its
earlier stands that the money
ought to be paid to the OASL and
has made strong submissions in
support of the legal advice of
the 1st defendant. Be that as it
may, the suit calls on us to
give an authoritative
interpretation of the relevant
constitutional provisions since
it is this court which has
exclusive jurisdiction in the
matter notwithstanding the
opinion any other authority or
person may hold.
ISSUES
The parties filed a joint
memorandum of issues and set
down only two issues for
determination and these were
adopted by the court. They are
as follows;
1.
Whether or not section
19(1), (2) and/or (3) of the
Administration of Lands Act,
1962 (Act. 123) to the extent
that it gives the Minister
responsible for lands the power
to determine any proportion of
moneys to be paid from stool
lands accounts to local
authorities is inconsistent with
article 267(6) of the 1992
Constitution and is therefore
null and void;
2.
Whether or not the
expression “revenue or other
payments whether in the nature
of income or capital from stool
lands” in article 267(2) of the
Constitution covers compensation
payable by the state for the
compulsory acquisition of stool
lands.
The 2nd defendant proposed
a third issue which referred to
the side note to Section 19(1)
of Act 123 but it has been
effectively covered under issue
1. More importantly, upon
reading the statements of case
of the defendants it is clear
that they agree with plaintiff
on that issue, the only
difference being whether it
ought to be struck down or it is
sufficient if it is applied with
the necessary amendment
occasioned by Article 267(6) of
the Constitution. I shall deal
with that at the concluding part
of this opinion but let me
tackle the main issue which is
issue 2. Article 267 of the 1992
Constitution has provided as
follow;
"Stool and Skin Lands and
Property
267.
(1) All stool lands in Ghana
shall vest in the appropriate
stool on behalf of,
and in trust for the subjects of
the stool in accordance with
customary law
and usage.
(2) There shall be established
the Office of the Administrator
of Stool
Lands which shall be responsible
for -
(a) the establishment of a stool
land account for each stool into
which shall be paid all rents,
dues, royalties, revenues or
other
payments whether in the nature
of income or capital from the
stool
lands;
(b) the collection of all such
rents, dues, royalties, revenues
or
other payments whether in the
nature of income or capital, and
to
account for them to the
beneficiaries specified in
clause (6) of this
article; and
(c) the disbursement of such
revenues as may be determined in
accordance with clause (6) of
this article.
(3) There shall be no
disposition or development of
any stool land unless
the Regional Lands Commission of
the region in which the land is
situated
has certified that the
disposition or development is
consistent with the
development plan drawn up or
approved by the planning
authority for the
area concerned.
(4) Where the Regional Lands
Commission fails or refuses to
give the
consent and concurrence under
clause (3) of this article, a
person
aggrieved by the failure or
refusal may appeal to the High
Court.
(5) Subject to the provisions of
this Constitution, no interest
in, or right
over, any stool land in Ghana
shall be created which vests in
any person or
body of persons a freehold
interest howsoever described.
(6) Ten percent of the revenue
accruing from stool lands shall
be paid to
the office of the Administrator
of Stool Lands to cover
administrative
expenses; and the remaining
revenue shall be disbursed in
the following
proportions-
(a) twenty-five percent to the
stool through the traditional
authority
for the maintenance of the stool
in keeping with its status;
(b) twenty percent to the
traditional authority; and
(c) fifty-five percent to the
District Assembly, within the
area of
authority of which the stool
lands are situated.
(7) The Administrator of Stool
Lands and the Regional Lands
Commission
shall consult with the stools
and other traditional
authorities in all matters
relating to the administration
and development of stool land
and shall
make available to them all
relevant information and data.
(8) The Lands Commission and the
Administrator of Stool lands
shall coordinate with all
relevant public agencies and
traditional authorities and
stools in preparing a policy
framework of the rational and
productive
development and management of
stool lands.
(9) Parliament may provide for
the establishment of Regional
branches of
the office of the Administrator
of Stool Lands to perform,
subject to the
directions of the Administrator
of Stool Lands, the functions of
the
Administrator in the region
concerned."
ARGUMENTS OF THE PARTIES
The plaintiff in his
statement of case has argued
that Article 267(2) is
encompassing and includes
compensation payable for the
compulsory acquisition of stool
lands. He referred the court to
the case of Pool v Guardian
Investment Trust Co Ltd (1921)
TC 167 which relied on the
United States Supreme Court case
of Eisner v Macomber (1919)
252 US 189 where the
relationship between income and
capital was described as being
the same as that between a tree
and its fruits. The fruits being
the income and the tree the
capital. To him the provision
was stated to include both
income payments and capital
payments meaning that periodic
payments as well as payments for
the land itself were intended to
be covered under the mandate of
the OASL. He said the provision
should be given a purposive
interpretation by the court and
to him the purpose of the
provision is to give effect to
the status of stool lands as
trust property held in trust for
the subjects of the stool. He
said applying the provision to
cover compensation for
compulsory acquisition of stool
lands would ensure that the
funds are fairly distributed to
the stool occupant, the
traditional authorities and the
local administration which is to
carry out development projects
to benefit future generations of
the community.
The defendants in their
statements of case are
contesting the case on two
alternative grounds. On the one
hand they contend that upon a
proper interpretation of Article
267(2) of the Constitution,
compensation for compulsory
acquisition of stool lands is
not among the payments
contemplated by the provision.
They submitted that Article
267(2) was intended by the
framers of the Constitution to
cover only periodic payments in
relation to stool lands and that
compensation which is a one off
bulk payment was not to be
covered. They referred to the
periodic payments arising in
relation to land in the form of
rents, dues and royalties
specifically mentioned in the
provision as indicative of the
type of payments contemplated.
They relied on the maxims
ejusdem generis and noscitur a
sociis.
On the other hand, the
defendants argued that article
267(2) is not even applicable to
payments due upon the compulsory
acquisition of stool land. In
their view compensation for
compulsory acquisition arises
out of the exercise by the state
of its power of eminent domain
which is provided for at Article
20 of the Constitution so it is
that article and not Article
267(2) that ought to apply to
payments in respect of such
acquisition. For them an
application of Article 20 of the
Constitution would result in the
payment of compensation direct
to the stool. They were of the
view that Article 267(2) applies
only to land taken under Act 123
and is inapplicable to land
acquired pursuant to Act 125 as
we have in this case. They
relied to a large extent on the
Supreme Court case of Owusu &
Ors v Agyei & Ors [1991] 2 GLR
493. They submitted that if
compensation is shared out as
provided for in Article 267(6)
of the Constitution then in the
event that the land is to be
given back to the original owner
in return for the compensation
paid as provided at Article
20(6), it would be
impracticable to refund the
compensation. For them it is
when we adopt an interpretation
that excludes compensation from
the sharing formula provided for
at Article 267(6) that Article
20(6) of the Constitution would
be made functional.
Plaintiff, in reaction to
the contentions of the
defendants rejected defendants'
argument that Article 267(2) by
mentioning payments which are
periodic in nature intended to
limit the provision to periodic
payment only and compensation
for compulsory acquisition is
not included. He maintained that
the provision is clearly in
reference to both periodic and
bulk sum payments. He said the
principles of ejusdem generis
and noscitur a sociis are
inapplicable in the case of the
provisions we are dealing with
here. He further dismissed the
argument that Article 267(2) is
only applicable to compensation
payable for use and occupation
of stool land under Act 123 and
contended that it applies to
compensation for stool lands
acquired under Act125 as well.
Plaintiff disputed the claim
that if compensation is shared
out to the OASL and the District
Assembly Article 20(6) will be
incapable of effective
implementation. He said Article
20(6) made provision for payment
of part only of the original
compensation.
ANALYSIS OF ARGUMENTS
The primary issue of
whether upon a true and proper
interpretation of Article 267(2)
of the 1992 Constitution,
compensation payments for
compulsory acquisition of stool
lands is covered by the
provision or not, calls for an
interpretation of the provision
to determine its scope. In
construing a constitutional
provision, and same applies to
other enactments, the objective
of the court is always to
discover the intention of the
framers of the Constitution. In
Tuffour v Attorney-General
[1980] GLR 637 Sowah JSC (as
he then was) at page 659-660 of
the report gave the following
guidelines to be followed by a
court in discovering the
intention of the framers of the
Constitution;
"We start by reminding
ourselves of the major aids to
interpretation bearing in mind
the goals the Constitution
intends to achieve. Our duty is
to take the words as they stand
and give them their true
construction having regard to
the language of the provisions
of the Constitution, always
preferring the natural meaning
of the words involved, but
nonetheless giving the words
their appropriate construction
according to the context."
In the case at hand, when we
start from the language used in
the Constitution and giving the
words their plain and natural
grammatical meaning it becomes
clear from the text of article
267(2) that the framers of the
Constitution coughed it in as
wide a language as was possible
and I am in no doubt that the
intention was to rope in all
forms of payments that may be
made in respect of stool land.
After listing various forms of
payment for land they added
"... or other payments whether
in the nature of income or
capital". This to me was
to signify the expanded
breadth they intended the
provision to have. If the
framers had intended to refer to
only periodic payments as
defendants contend, they would
have stopped the provision at
"or other payments," period. To
have gone beyond that to
indicate the character and
nature of the other payments can
only mean that they are
additional to what has been
specifically mentioned. Payments
for land in the nature of
capital are substantially
different from the other
payments mentioned in Article
267(2) and prior to the
constitutional provision, Act
123 provided for a different
management scheme for such
payments at Section 23 thereof
in the following words;
"Section 23—Capital Payments.
Any part of the moneys received
by the Minister under this Act
which, in his opinion, is of a
capital nature shall not be
applied under this Part of this
Act except to defray expenditure
which is designated by the
Minister in a scheme under this
Part of this Act as being of a
capital nature, and in case
there is no such expenditure or
in any other case the money may
be invested in such manner as
the Minister responsible for
finance may direct."
Though Act 123 does not
explain "payments of a capital
nature" in respect of land,
payments for land in the nature
of capital is a technical term
in matters of land valuation. It
is a well known principle of
interpretation that when
technical words are used in an
enactment they should be given
their technical meaning. In
fact, at paragraph 44 of the
statement of case of the 2nd
defendant filed on 1/3/2017 it
conceded that compensation
payments for land compulsorily
acquired are in the nature of
capital payments except that it
tries to make a distinction
between payments that are tax
exempt and those not, a totally
irrelevant analysis for our
purposes here. This is what it
stated;
"44. It may be noticed that
compensation payments fall
within an entirely different
genus, unlike the specific
payments mentioned in article
267 all of which are taxable
incomes or revenues. Even though
compensation payments are in the
nature of capital payments
(properly so called) they do not
confer a benefit on the
recipient but instead seek to
place him in the position that
he was before the compulsory
acquisition."
Capital value of land has
been defined in the Land
Valuation Act of South
Australia, 1971 at section 5
(the interpretation section of
the Act) as; "amount a fie
simple in the land is reasonably
expected to realise upon sale."
The 1st and 3rd defendants in
their joint statement of case
adopted the definition of
compensation in Black’s Law
Dictionary which stated that
compensation is the property's
fair market value where it is
taken under the eminent domain
by the government. When land is
compulsorily acquired and the
title of the allodial owner is
taken away, the compensation is
the open market value of the
land upon sale and that payment
is definitely of a capital
nature as admitted by 2nd
defendant.
The defendants in urging
the court to hold that
compensation is not covered
under Article 267(2) enlisted
the assistance of two under aids
to the interpretation of
statutes namely; ejusdem generis
and noscitur a sociis. These
aids are presumptions used to
guide courts in efforts at
discovering the intention of the
maker of an enactment where
general and imprecise words are
used in a manner that leaves the
intention of the maker of the
enactment unclear. As I said
earlier, if the provision had
stopped at “other payments”
after the mention of rents, dues
and royalties, then probably
these presumptions could have
been resorted to in the absence
of other guides but that is not
the case here.
In his book, "The Law
of Interpretation in Ghana,
1st Ed (1995), Dr S.Y.
Bimpong-Buta stated as follows
at page 111;
"It must be stressed that
the rule (ejusdem generis) is
not to be applied merely because
a provision in a statute or
document has a general word or
words following particular
words. If there are sufficient
grounds to show that the general
words have not been used as
limited by the class of things
falling within the class of
specific words, if an overall
view of the scope of the Act
shows that the general words are
to be construed generally, the
court must construe them even if
they follow specific
expressions."
In the instant case, the
controlling words are;
"....other payments…in the
nature of...capital" in
respect of stool lands. The
makers of the enactment here
have made their intention clear
that other payments are not to
be limited by the preceding
specific words so the services
of the presumptions in the two
maxims are not called for.
This court in the case of
Ghana Lotto Operators v NLA
[2007-2008] SCGLR 1088
upheld and applied article 34(1)
of the Constitution which
provides that the Directive
Principles of State Policy shall
guide the judiciary in the
interpretation of the
Constitution. Article 36(8) is
part of the Directive Principles
of state policy in the
Constitution and provides as
follows;
"The State shall recognise that
ownership and possession of land
carry a social obligation to
serve the larger community and,
in particular, the State shall
recognise that the managers of
public, stool, skin and family
lands are fiduciaries charged
with the obligation to discharge
their functions for the benefit
respectively of the people of
Ghana, of the stool, skin, or
family concerned and are
accountable as fiduciaries in
this regard."
Consequently, if we take
account of the above provision,
it leads us to the irresistible
conclusion that the purpose for
which the framers of the
constitution included article
267(2) and (6) in the
Constitution was to enable
effect to be given to the policy
of the Constitution expressed in
Article 36(8) reproduced above.
Notwithstanding the fact
that the Constitution in express
words has combined periodic
payments and capital payments
together in Article 267(2)(b),
the defendants argued
strenuously that since there is
a distinction between
acquisition of stool lands under
Act 123 and Act 125, Article
267(2)(b) has to be confined to
payments for acquisitions under
Act 123 only. Nothing has been
pointed out in the Constitution
as limiting Article 267(2) but
they say it ought to be so. They
claim such was the decision of
the Supreme Court in the case of
Owusu & Ors v Agyei & Ors
[1991] 2 GLR 493. In that
case the chief of Kumawu in the
Ashanti Region conspired with
others to claim compensation for
Kumawu stool land that the
Government of Ghana acquired in
1971 for a forest reserve. The
compensation collected was not
paid into the stool land account
but was pocketed by the chief
and his co-conspirators. Some
subjects of Kumawu, claiming to
represent the Oman of Kumawu,
brought an action in the High
Court praying the court to order
the defendants to refund the
compensation for the benefit of
the Oman of Kumawu. E.D. Kom
Esq, who was counsel for the
chief of Kumawu, argued among
other grounds that by virtue of
section 17 of Act 123 it was
only the Minister for Lands
alone who by law could bring an
action to recover the
compensation paid in respect of
the Kumawu stool land
compulsorily acquired since it
was stool land revenue as
defined in the Section and
prayed the court to dismiss the
plaintiffs' case for want of
capacity. He cited a number of
cases in which private actions
to recover stool land revenue
were dismissed for want of
standing on account of section
17 of Act 123.
The section provided as
follows; "Section
17—Collection of Revenue.
(1) All revenue from lands
subject to this Act shall be
collected by the Minister and
for that purpose all rights to
receive and all remedies to
recover that revenue shall vest
in him and, subject to the
exercise of any power of
delegation conferred by this
Act, no other person shall have
power to give a good discharge
for any liability in respect of
the revenue or to exercise any
such right or remedy.
(2) Revenue for the purposes of
this Act includes all rents,
dues, fees, royalties, revenues,
levies, tributes and other
payments, whether in the nature
of income or capital, from or in
connection with lands subject to
this Act" (Stool lands)."
(Though the wording of
section 17 (1) of Act 123 bears
close resemblance to Article
267(2) (b) there is a
significant difference that
ought to be noted.)
Roger Korsah J who decided
the Owusu v Agyei case in
the High Court reviewed the
authorities cited by E. D. Kom
Esq and observed that the facts
in those cases were not
complicated by evidence of fraud
in the collection of stool
revenue as in the case before
him. So he set out to wriggle
his way pass the statutory
hurdle in order to determine the
case on its merits. He said
section 17 of Act 123 has to be
given a restricted
interpretation because if the
court held that it was only the
Minister that could sue to
recover stool revenue as the
section clearly stated, then
when there are conflicting
claims for compensation by
several stools, on behalf of
which of them would the Minister
sue to recover the compensation.
He then held that since section
4 of Act 125 under which
compensation for compulsory
acquisition of stool lands was
payable provided a procedure for
claiming compensation by a
person who claims an interest in
acquired land without
specifically excluding a stool,
compensation under Act 125,
though it is payment of a
capital nature for stool land,
must be deemed excluded from
revenue as defined in section 17
of Act 123. He applied the
doctrine of implied repeal of an
earlier enactment by a later one
and concluded that Act 125 being
later that Act 123 by
implication excluded
compensation for stool land
acquired under it from section
17 of Act 123.
Now before proceeding
further, I like to point out
that the issue that was raised
by E. D. Kom Esq in the High
Court had to do more with the
part of section 17 of Act 123
that made the Minister the only
person who could seek a remedy
and therefore who alone could
sue to recover stool land
revenue. It is significant to
note that that part of section
17 has been taken out in the
wording of Article 267(2) which
now talks only of establishment
of stool land accounts,
collecting payments in respect
of stool lands and disbursement
of same. It therefore appears to
me that the conflict perceived
by Roger Korsah J to have
existed between the right to sue
for compensation conferred on
the Minister alone under Act 123
and the right of a stool to
claim compensation under Act 125
no longer exists, if it ever
existed. The stool can make its
claim under section 4 of Act 125
and if it is disputed by other
stools, the High Court under
section 3 of Act 125 would
determine the rightful
claimant(s) but when the money
is ready the OASL collects and
disburses. In any event, when
the High Court referred to the
problem that would confront the
Minister in the event of
conflicting claims for
compensation for stool land
compulsorily acquired, it should
have realised that there could
also be conflicting claims by
stools for rents, tributes and
royalties in respect of stool
land so the practicability
argument he used to distinguish
compensation and restrict
section 17 of Act 123 to only
periodic payments was clearly
unjustifiable.
Be that as it may, the
High Court was reversed by the
Court of Appeal. The Court of
Appeal upheld the arguments of
the defendants that the
plaintiffs had no capacity to
sue because the wording of
section 17 of Act 123 was so
wide that it covered
compensation under the
definition of stool land revenue
so it was only the Minister for
Lands, and not the stool, that
could sue. They nevertheless
agreed that the defendants'
conduct was fraudulent and
therefore directed that monies
paid into court by the
defendants following the
judgment of the High Court
should remain there pending
action by the Minister.
Upon appeal by the
defendants to the Supreme Court,
the Supreme Court held that by
virtue of an amendment to Act
125 effected in 1968 by the
State Lands (Amendment) Decree,
NLCD 234, section 17 of Act
123 was not applicable to stool
lands acquired under Act 125. A
little background here is
important for us to appreciate
the context within which the
Supreme Court decided that case.
Initially when Acts 123 and 125
were passed in 1962, compulsory
acquisition of stool lands could
not be made under the provisions
of Act 125. The original Act 125
in section 1(1) thereof stated
as follows;
"1) Where it appears to the
President in the public interest
so to do, the President may, by
executive instrument, declare
the land specified in the
instrument, other than land
subject to the Administration of
Lands Act, 1962 (Act 123), as
land required in the public
interest."
That meant that from that time
compensation payable in respect
of stool lands compulsorily
acquired was subject to the
provisions of section 17 of Act
123 so it was the Minister who
was supposed to collect such
compensation and disburse it
according to the provisions of
that Act. However, in 1968 the
National Liberation Council by
NLCD 234 made it possible for
stool lands to be compulsorily
acquired under Act 125 but it
stated that where a stool land
was acquired under Act 125, the
provisions of Act 123
(particularly section 17, I
believe) were not to apply to
that acquisition. With this
background one may ask, if
compensation for acquisition of
stool lands was not covered
under section 17 of Act 123, why
was there a need to specifically
exclude it in the amendment? So
it was
on account of NLCD 234 that the
Supreme Court held that the
Court of Appeal erred in holding
that it was the Minister who had
capacity to sue for the
compensation and reinstated the
decision of the High Court. The
legal effect however is that,
though the Supreme Court came to
the same conclusion as the High
Court on the non-applicability
of section 17 of Act 123, they
did so on different legal
grounds which effectively set
aside the legal reasoning
adopted in the judgment of the
High Court. For the law is that,
where a lower court arrives at a
correct conclusion but for
wrong reasons, an appellate
court may uphold the judgment
but provide the right legal
grounds to justify it. In view
of the fact that this present
case is premised on a
constitutional provision, that
amendment relied upon by the
Supreme Court in Owusu v
Agyei is of no consequence,
hence even the defendants have
not sought to base their case on
it. This is more so because if
even we apply the doctrine of
implied repeal adopted by Roger
Korsah J, then Article 267(2)
being a constitutional provision
and a later enactment at that,
effectively repelled NLCD 234.
Though the Supreme Court
did not discuss the issue
whether compensation was stool
land revenue within the context
of the provisions of Act 123 as
against those of Act 125
indulged in by the High Court
judge, a close reading of the
opinions of Francois, Wuaku and
Aikins, JJSC, suggests that
their view of the matter was
that, but for the amendment to
Act 125, the compensation was
payment covered under Section 17
of Act 123. For instance, at
page 507 of the report Francois
JSC, who delivered the lead
judgment of the court, stated as
follows;
"In my view, section 17 of
Act 123 seeks to regulate and
promote the orderly management
of stool revenues. It does not
encroach on inalienable rights
of stools to their title to
land. I differ from those who
think title to stool properties
has been effectively
sequestrated by legislation.
Section 17 only maps out revenue
administration but does not edge
out rights appertaining to
ownership of stool lands. It
should not be forgotten that
NLCD 234 erodes the force of Act
123 by making the latter Act
inapplicable in certain
acquisitions, and consequently
abating the force of section
17."
The above quotation seems
to me to be a criticism directed
at the reasoning of Roger
Korsah J when he considered
section 17 of Act 123 as taking
away from the right of stools to
claim compensation under Act 125
which he thought he had to
salvage. It also answers the 2nd
defendant's argument at
paragraph 73 of its statement of
case that statutory provisions
for compensation to be shared
according to the formula in
Article 267(6) would amount to
denial of the title of stools in
their lands. As for the question
whether compensation payments
are of a capital nature, the
answer in Owusu v Agyei
was undoubtedly in the
affirmative.
What I have laboured to
demonstrate above is that the
decision of the Supreme Court in
Owusu v Agyei, turned on
a statute that has ceased to
have effect in the face of
Article 267(2), so it did not
decide the question facing us
and has no binding effect on us.
If anything at all, the
persuasive effect of that
decision favours the case of the
plaintiff. If the framers of the
Constitution had intended
Article 267(2) to be exclusive
of payments under Act 125 (as
was intended by the legislature
in NLCD 234) they would have
excluded it as has been done in
several parts of the text of the
1992 Constitution including
Article 19(16), Article 20(4)
and Article 21(4).
Article 267(2) of the 1992
Constitution had two precursors
in Article 164(2) of the 1969
Constitution and Article 190(2)
of the 1979 Constitution but
they were never interpreted by
the Supreme Court during the
brief lives of those
Constitutions. It is therefore a
historic opportunity that has
been afforded this court to
interpret and give effect to the
policy of the framers of our
Constitution as plainly
expressed in Article 267(2) and
the defendants should not
obfuscate the provision with
notions that have not been given
expression in the Constitution.
In the recent Supreme
Court case of Mrs Margaret
Banful & Anor v The
Attorney-General & Anor, Writ No
J1/7/2016 the court had to
interpret the words "treaty,
agreement or convention by or
under the authority of the
President shall be subject to
ratification by" Parliament in
Article 75 of the 1992
Constitution to determine if its
scope covers instruments
exchanged between the Government
of Ghana and that of the United
States in respect of the Gitmo
two. The defendant argued that
the court should maintain a
distinction between executive
agreements which did not require
parliamentary approval and
treaties which do. In rejecting
that distinction the majority of
the court through Sophia Akuffo,
CJ in the unreported judgment
dated 22th June, 2017 at page 13
said as follows;
"The language of Article
75 is perfectly clear. The
Article forms part of the set of
provisions governing the role of
the Executive arm of government
in Ghana's international
relations. The scope of the
Article deals with treaties in
general (c.f. the side notes)
and the body of the text makes
reference to 'treaties,
agreements and conventions'. It
is also clear that the
instruments referred to relate
to Ghana's international
relations with other countries
or groups of countries and the
Article requires that such
instruments must be ratified by
parliament. The Constitution
makes no mention of any
distinctions that are dependent
on the formality with which such
an instrument is formatted or
brought into being..."
In similar vein, Article
267(2) does not mention any
distinction dependant on how the
stool land in respect of which
the payments arise was acquired
but it is defendants who are
trying to read such a
distinction into the provision
and it must be rejected.
Another leg of the
argument of the defendants is
that compulsory acquisitions are
made under article 20 of the
Constitution so it is article 20
and not 267(2)(b) that ought to
be our guide in determining the
proper person to collect the
compensation. Article 20 is a
general provision which is
stated expressly to provide for
protection from deprivation of
property of any description
without the prompt payment of
fair compensation. Though it
requires that compensation shall
be paid on compulsory
acquisition of property, there
is no provision in it directing
to whom the compensation shall
be paid. Nonetheless, defendants
argued that if article 20 is
construed as a whole, clause (6)
thereof tends to suggest that
the compensation is to be paid
to the owner of the property
acquired because, according to
them, it is only if it is paid
to the owner that clause (6)
would be operative in respect of
all acquisitions. Their
contention is that if
compensation for stool land is
shared out as provided for in
article 267(2) & (6) then in the
event of return of the land for
not using it in the public
interest, how the owner would
refund the compensation which
was shared to the OASL and the
District Assembly. This
convoluted argument collapses
upon a close reading of the
whole of clause (6) itself. It
states;
"(6) Where the property is not
used in the public interest or
for the purpose for which it was
acquired, the owner of the
property immediately before the
compulsory acquisition, shall be
given the first option for
acquiring the property and
shall, on such reacquisition
refund the whole or part of the
compensation paid to him as
provided for by law or such
other amount as is commensurate
with the value of the property
at the time of the
reacquisition.(emphasis
supplied)"
As was rightly argued by
Dr Abdul Bassit, learned counsel
for the plaintiff, Clause (6)
does not demand a refund by the
original owner of the whole of
the compensation paid in respect
of the land. It allows for a
refund of part of the
compensation paid in respect of
the acquisition. Clearly
therefore, clause (6) of article
20 anticipated the situation
that would arise under article
267(2) & (6) where, by operation
of law, part of the compensation
is not paid to the original
owner.
Article 267(2)(b), as
against article 20, specifically
deals with payments in respect
of stool lands and who is
entitled to collect such
payments and how they are to be
disbursed. That is the crux of
the dispute in this case. It
will be noticed that article
267(2)(b) is plain and
unambiguous and unlike article
267(5)of the constitution it is
not stated to be subject to any
provision of the Constitution or
article 20 for that matter. It
is thus clear that article 20 is
not applicable in the
circumstances of this case. But
supposing it were relevant, the
provisions of article 267(2)(b)
being specific on payments in
respect of stool lands, would
prevail over article 20 which is
general in nature and effect. In
the case of New Patriotic
Party v Rawlings & Anor
[1993-94] 2 GLR 193 this
court held as follows in the
Headnote;
"The language of section
23(1) of the transitional
provisions of the Constitution,
1992 is clear and unambiguous...
The subsection stands out
without any qualification
whatsoever. It is not made
subject to any provision of the
Constitution, 1992 unlike
article 11(6) of the
Constitution, 1992 and sections
31(1) and 36(2) of the
transitional provisions of the
Constitution, 1992 where we find
repeated use in the sections of
the expressions "with such
modifications, adaptations,
qualifications and exceptions as
may be necessary to bring it (ie
the law) into conformity with
the Constitution and in so far
as it is not inconsistent with
the Constitution." These
expressions are general
provisions as against the
specific provision of section
23(1) which appears to have been
put in for transitional
arrangements, and which, in my
view, did not cease to have
effect on the coming into force
of the Constitution, 1992. The
law with respect to general and
particular or specific
enactments is trite and is to
the effect that where a
particular or specific
enactment, and a general
enactment appear in the same
statute, and the general
enactment, taken in its most
comprehensive sense, would
override the specific enactment,
the specific enactment must be
operative, and the general
enactment must be taken to
affect only the other parts of
the statute to which it may
properly apply... This is an
application of the maxim
generalia specialibus non
derogant. This special
provision stands as an
exceptional proviso upon the
general."
See also Zakaria v
Nyimakan [2003-2004] SCGLR 1.
The 2nd defendant in its
submissions on the distinction
between compulsory acquisitions
under Act 123 and 125 created
the impression that it is
alright for periodic payments in
respect of use and occupation of
stool land to be shared under
article 267(2) & (6) but there
is something wrong with lump sum
payments for permanent lost of
title being shared according to
the formula in the article. 2nd
defendant however did not point
to any provision in the
Constitution as justification
for its theory. If periodic
payments can be shared with
District Assemblies for
development projects to benefit
future generation of subjects of
a stool, one would have thought
that bulk payments would achieve
even more. I consider those
submissions of 2nd defendant as
value judgments of the policy in
the constitutional provision but
our duty as a constitutional
court is not to indulge in value
judgments of plain and
unambiguous provisions of the
Constitution. Our province is to
interpret the Constitution to
give effect to the declared
intention of its framers.
In Republic v Fast
Track High Court, Accra; Ex
parte Daniels [2003-2004] SCGLR
364 at 370 Kludze JSC said
as follows;
"We cannot, under the
cloak of constitutional
interpretation, rewrite the
Constitution of Ghana. Even in
the area of statutory
interpretation, we cannot amend
a piece of legislation because
we dislike its terms or because
we suppose that the lawgiver was
mistaken or unwise. Our
responsibility is greater when
we interpret the Constitution.
We cannot and must not
substitute our wisdom for the
collective wisdom of the framers
of the Constitution."
The defendants have to
recognise that Article 267(2)
which established the OASL
limited its functions to
collecting and sharing money
payable in respect of stool
lands. The OASL's mandate is not
to manage stool lands contrary
to the impression being created,
which wrong impression is partly
attributable to its name. An
appropriate name would be;
"Office of the Administrator of
Stool Lands Payments". It is the
2nd defendant that is in charge
of managing stool lands by
giving or withholding consent or
concurrence for grants of stool
lands under section 8 of Act 123
and Article 267(3) of the
Constitution. So while the 2nd
defendant manages stool lands as
well as public lands, the OASL
collects and shares money
payable in respect of stool
lands. It makes for the orderly
administration of payments for
stool lands as Francois JSC
said. The Land Valuation Board
was therefore right in proposing
to pay the compensation due in
respect of the Barekese Dam
acquisition to the OASL in view
of the fact that the acquisition
took place at the time the 1992
constitution was in force.
In my considered opinion,
upon a true and proper
construction of article 267(2)
of the 1992 Constitution,
compensation payable in respect
of compulsory acquisition of
stool land is payment in the
nature of capital to be paid to
the OASL to be applied in
accordance with article 267(6).
CONCLUSION
The offending provision in
section 19(1) of Act 123 that
provoked issue 1 in this case
was inserted by the Statutory
Law Review Commissioner in an
effort to bring the said Act in
line with the 1992 Constitution.
It is obvious that he did not
succeed so I think it is better
to strike it down so I grant
relief 1 of plaintiff's claims.
On the basis of the reasons I
explained above I hereby grant
reliefs 2 and 3 of plaintiff's
claims. I am unable to grant
relief 4 because the processes
before us indicate that the
claimants in the Barekese Dam
acquisition were paid before the
case was filed and I thought
that accounted for plaintiff's
failure to make them parties in
this case.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ABDUL BAASIT AZIZ BAMBA FOR THE
PLAINTIFF.
DOROTHY AFRIYIE ANSAH, CHIEF
STATE ATTORNEY FOR THE 1ST
AND 3RD DEFENDANTS.
KWAME POKU-BOAH FOR THE 2ND
DEFENDANT. |
